SERVICES AGREEMENT

DEFINITIONS AND INTERPRETATIONS

 

  1.  The following definitions apply for this Agreement:

Client Content” means all plans, specifications, data, content and materials (including, without limitation, any images, script, software, hardware, data and networks) provided by or on behalf of Client to ATI in connection with the Services and Subscription Services.

End Users” means the representatives of Client that access and use (via the Subscription Services) the Product developed by ATI.

Product” means the Application Program Interface (“API”) and the customizations to the Subscription Services and the Client presentations developed by ATI and as specifically described in Exhibit A attached to this Agreement.

Services” means the services performed by ATI pursuant to this Agreement.

Subscription Services” means the subscription services provided by ATI to End Users via an internet-accessible website at www.iDecide.com.

1. GENERAL PROVISIONS OF SERVICES

 

      1.  In consideration of Client’s payment of the Service fees when due, ATI will perform the Services set forth in Exhibit A. ATI shall determine the method, details and means of performing the Services and providing the Product to Client hereunder.

2. PRODUCT DEVELOPMENT

 

  1.  ATI undertakes and agrees to develop the Product and provide the Services as per the terms and conditions set forth in this Agreement and according to the Specifications and Development Plan described in Exhibit A.

    3. SERVICES

     

        1.  ATI shall host the Product on its servers in connection with the use of the Subscription Services by End Users, whom shall be able to access the Product on the Subscription Services after completion of the Product.
        1.  ATI shall use commercially reasonable endeavors to make the Subscription Services available to the Subscribers, 24 hours a day, seven days a week, except for:
        1. Planned maintenance carried out during the maintenance schedule.
        2. The necessary unscheduled maintenance of the Subscription Services.

    4. USER SUBSCRIPTIONS

     

        1.  ATI shall charge End Users a subscription fee for each individual (End Users) accessing and using the Subscription Services, including, without limitation, the Product.
        1.  The User Subscription fee shall be set forth in Exhibit A attached.

       

      5. RIGHTS AND LICENSE GRANTED

       

          1.  Under this Agreement, Client shall not be granted any rights or license to the Product or Subscription Services. Client acknowledges that through the Subscription payments to ATI the End Users shall be granted access to the Product and that Client may purchase a subscription to the Subscription Services as well.
          1.  This Agreement entitles Client or End Users to receive from ATI technical support and limited telephone assistance.
          1.  Planned maintenance carried out during the maintenance schedule.
          2.  The necessary unscheduled maintenance of the Subscription Services.

      6. RESTRICTIONS

       

          1.  At no time will Client hold title to or ownership of the Product, any ATI data or source code, and any materials provided to Client by ATI during the term of this Agreement.
          1. Client Content, including information provided by Client, as defined in paragraph 10.1, will remain the property of Client at all times during the term of this Agreement. ATI agrees that it shall not publish or discuss Client Content with any third party during the term of this Agreement.
          1.  Client acknowledges and agrees that at no time shall it be entitled to:  3. Client acknowledges and agrees that at no time shall it be entitled to:

             

            i.  Download, distribute, install or otherwise redistribute the Product in any form not explicitly covered by this Agreement.

            ii.  decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product and Subscription Services (except to the extent applicable laws specifically prohibit such restriction);

            iii.  redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product and Subscription Services;

            iv.  remove, obscure or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product and Subscription Services;

            v.  publish any results of benchmark tests run on the Product and Subscription Services to a third party without ATI’s prior written consent;  vi. publish or discuss the contents of this Agreement, including pricing plans and Services rendered.

            vii.  disable, disconnect or otherwise alter the API as provided by ATI.

         

        7. FEES

         

            1.  Client agrees to pay a Services fee, indicated in Exhibit A, to ATI for developing the Product.

          8. TERM AND TERMINATION

           

              1.  Parties agree that the term of this Services Agreement shall be one year, and shall automatically renew for consecutive one-year terms unless terminated in writing by either party at least sixty days prior to the end of the term. Without prejudice to any other rights, ATI may terminate this Agreement immediately upon notice to Client if Client breaches any of its terms and conditions.

            9. PROPRIETARY RIGHTS

             

                1.  Title, ownership rights, and intellectual property rights in the Product and Subscription Services shall remain with ATI, except for Client Content. Client acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with ATI’s ownership of or rights with respect to the Product and Subscription Services. Title, ownership rights, and intellectual property rights in the Client Content shall remain with Client.
                1.  The Product and Subscription Services are protected by copyright and other intellectual property laws and by international treaties.
                1.  Title and related rights in the content accessed through the Product and Subscription Services is the property of the applicable content owner and is protected by applicable law. This Agreement does not grant the Client with any right to such content.

            10. CLIENT’S RIGHTS, OBLIGATIONS AND WARRANTIES

             

                1.  Client shall provide ATI with (i) all necessary cooperation in relation to this agreement; and (ii) all necessary access to such information and Client Content as may be required by ATI; in order to develop the Product and provide the Services.
                1.  Client shall comply with all applicable laws and regulations with respect to its activities under this Agreement.

            11. ATI’S RIGHTS, OBLIGATIONS AND WARRANTIES

             

                1. ATI undertakes that the Services will be performed substantially in accordance with the Specifications set out in the Exhibit A and with reasonable skill andcare.
                1. The undertaking in the above clause (11.1) shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to ATI’s instructions, or modifications or alteration of the Services by any party other than ATI or ATI’s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, ATI will, at its expense, use reasonable commercial endeavors to correct any such non-conformance promptly. Such correction constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in the above clause 11.1.

                  Notwithstanding the foregoing, ATI:

                  i.  does not warrant that Client’s use of the Subscription Services will be uninterrupted or error free; or that the Services and Subscription Services will meet the Client’s requirements; and 

                  ii.  is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet, and Client acknowledges that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of such communication networks and facilities.

                1.  This Agreement shall not prevent ATI from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, software and/or services which are similar to those provided under this Agreement.

            12. LIMITED WARRANTY

             

                  1.  ATI warrants that the Services will be provided in a good and skillful manner and the Product will substantially conform to the current Specifications and Documentation of ATI.

                    Except as expressly stated in the preceding sentences of this paragraph, ATI makes no express or implied warranty with respect to the Services and Subscription Services and this Agreement, including but not limited to any warranty (1) of merchantability, fitness for a particular purpose, performance, suitability, or non-infringement; (2) relating to third-party products, software, or services; (3) Relating to the performance of the Services and Subscription Services; or (4) regarding the results to be obtained from the services, Subscription Services, or the results of any recommendation by ATI.

            13. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS

             

                1.  ATI warrants that the Product and Services developed and / or provided under this Agreement will not knowingly infringe any third-party intellectual property rights including the copyright, trademark, patent, or other proprietary right of any third party or knowingly constitute a misuse of misappropriation of a trade secret.
                1.  ATI shall defend, indemnify and hold Client harmless against any loss, damage or expense or cost, arising out of a Claim that is based on the allegation that the Client’s use of the Product or Services under this Agreement infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of any trade secret. ATI’s indemnification obligation does not apply to Services and Product (or portions of them) that are: (i) modified by anyone other than ATI or its agents, if the alleged infringement relates to that modification; (ii) created according to a plans or specifications created or provided by or on behalf of Client; (iii) combined with other products, processes or materials, where the alleged infringement relates to that combination; (iv) used by Client after Client was notified of the allegedly infringing activity or after being informed of modifications that would have avoided the alleged infringement; (v) Client Content; or (vi) not used in accordance with the terms and conditions of this Agreement and Exhibit A.

            14. CLIENT’S INDEMNIFICATION

             

                  1.  Client agrees to indemnify and hold ATI harmless from and against any and all claims, lawsuits, costs (including reasonable attorney Fee and expenses), liabilities, damages, fines, settlements or any other expense that may be incurred or asserted against either party arising out of, or related in any way to the Client Content, or Client’s use of the Services, or from any breach by Client of any representation or warranty or covenants given by Client in this Agreement or Client’s own negligence or the negligence of Client’s employees, agents, or representatives.

            15. LIMITATION OF LIABILITY

             

                  1.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ATI OR CLIENT OR THEIR RESPECTIVE SUPPLIERS OR RESELLERS (IF ANY) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT AND THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, LOST DATA, LOST PROFITS, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, EACH OF ATI’S AND CLIENT’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID TO ATI BY CLIENT (LESS ANY REPAYMENTS AND REFUNDS) PURSUANT TO THIS AGREEMENT, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ATI OR CLIENT (AS APPROPRIATE) TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ATI IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY CLIENT OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND SUBSCRIPTION SERVICES AND FOR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

            16. MISCELLANEOUS

             

            1.  This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof.

             

            1. This Agreement may be amended in writing only when signed by both parties.

             

            1.  If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.

             

            1.  The controlling language of this Agreement is English. If the Client has received a translation into another language, it has been provided for the Client’s convenience only.

             

            1.  A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.

             

            1.  The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.

             

            1.  The Client may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of the Client’s assets to another entity.

             

            1. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.

             

            1.  Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.

             

            1.  The relationship between ATI and Client is that of independent contractors and neither the Client nor its agents shall have any authority to bind ATI in any way.

             

            1.  Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Ohio, and is intended to be supplemental to any local, state or federal law or regulation regarding the same. Any inconsistency between any law or regulation and this Agreement is to be interpreted so as to provide ATI the greater protection. The parties agree hereto consent to and agree that jurisdiction for any dispute arising out of this Agreement whatsoever, or the enforcement of the remedies granted herein, shall be instituted and maintained only in the Court of Common Pleas of Mahoning County, Ohio or the United States District Court sitting in Mahoning County, Ohio.

             

            1.  If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.
            1.  The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.

             

            1.  ATI may use Client’s name in any Client reference list or in any press release issued by ATI regarding the licensing of the Product and/or provide Client’s name and the names of the Product licensed by Client to third parties.

             

            1.  Parties agree to keep confidential all aspects of this Services Agreement.

             

            1.  Client shall not refer to iDecide presentations as “videos” and shall instead use the term “interactive presentation” (or other terms as may be approved by ATI) in its official written or verbal communications.

             

             The parties have electronically executed this Services Agreement as of the Purchase Date.

             

            EXHIBIT A

             

            SPECIFICATIONS OF THE PRODUCT

            The ‘Product’ shall be a Client-branded presentation for use with the proprietary software known as iDecide.

            PRESENTATION DEVELOPMENT

            1. Client shall pay for the development of one custom iDecide presentation as described on the WWW.IDECIDE.COM Edits to existing presentations shall be billed at $100 per hour, not to exceed the cost of a new presentation at the then current price.

            DEVELOPMENT PLAN

            Product shall be completed and delivered to Client on or about 2 weeks after commencing production. Client shall provide ATI access to a user account for testing purposes.

            CLIENT OBLIGATIONS

            Client is to provide all video content, company logos, existing graphic assets, and other Client Content, along with access to relevant information and any resources necessary to complete the Product in a timely manner. Assuming the “Minimum User Upcharge” was not charged, and Client does not have the required minimum number of users (100) within 90 days, Client grants ATI the right to charge said upcharge ($2500) on the same credit card used for the purchase of the presentation.

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